Kenya: BBI Bill Finally Gets to Parliament

26 February 2021

The Constitution of Kenya (Amendment) Bill, 2020, popularly known as Building Bridges Initiative (BBI) Bill, has finally found its way into Parliament and will now be considered by the National Assembly and Senate concurrently.

The Bill will have to be published by the Government Printer today (Friday) to pave the way for its processing in the two Houses.

This comes after National Assembly Speaker Justin Muturi and his Senate colleague Ken Lusaka in separate communications to their respective Houses announced that the Bill had met the constitutional threshold of approval at the county assemblies before it is introduced to Parliament.

"Hon. Members, in this regard, it is clear that the Draft Constitution of Kenya (Amendment) Bill, 2020 has met the threshold required under the Constitution for introduction in Parliament," Speaker Muturi told the House.

This implies that it will be introduced in both Houses at the same time and be processed in a parallel manner.

The Constitution provides that Parliament shall consider the Bill within three months.

The draft Bill seeks to change the system of government from a presidential to a hybrid one by creating the position of prime minister and two deputies as well as have Cabinet ministers appointed from among the members of the National Assembly.

It also seeks to create 70 constituencies on top of the current 290 and have a minimum of 35 per cent of the national revenue, as audited and approved by the National Assembly, allocated to counties.

"The Bill will be considered in the Houses of Parliament in a concurrent manner and processed in accordance with the Standing Orders of the respective Houses," Mr Muturi added.

Article 257 (7) of the Constitution provides that if a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay.

The country has 47 county assemblies, meaning that it only requires the approval of at least 24 assemblies for a constitutional amendment Bill to be introduced in parliament.

Speaker Muturi Thursday announced that 30 of the 47 county assemblies had approved the Bill as per the returns filed in the two Houses of parliament by 2pm.

Baringo and Nandi county assemblies are the only ones so far which have rejected the Bill while some county assemblies are yet to consider and file their returns to Parliament.

However, their delay in filing returns is immaterial as the threshold has already been met and Parliament can proceed and consider it.

County assemblies that have approved the Bill include Siaya, Homa Bay, Kisumu, Trans Nzoia, Busia, Kajiado, West Pokot, Laikipia, Kisii, Nairobi, Garissa, Mombasa and Taita Taveta.

The others are Kakamega, Kitui, Vihiga, Murang'a, Narok, Makueni, Kirinyaga, Nyeri, Bungoma, Machakos, Nakuru, Meru, Tharaka Nithi, Tana River, Embu, Nyandarua and Kericho.

Article 257 (5) of the Constitution provides that each county assembly shall consider the draft Bill within three months from the date it was submitted by the Independent Electoral and Boundaries Commission (IEBC).

"Having consulted the Speaker of the Senate, we have resolved to facilitate the Houses of Parliament to commence the process of consideration of the Bill without any delay," Speaker Muturi told the House.

Once the Bill has been published, the two Speakers will guide their respective Houses on the rest of the processes after meetings of the respective House business committees (HBCs).

Although Nyamira and Kwale county assemblies have approved the Bill, they did not file the relevant documentation as per the guidelines of November 22, 2019 that Speakers Muturi and Lusaka published in the Kenya Gazette.

The guidelines provide that upon approval or rejection of a draft Bill to amend the Constitution, the Speaker of the county assembly, shall notify the Speakers of the two Houses.

The notification shall be by delivering, during official working hours, a copy of the draft Bill and a certification that the county assembly has approved or rejected the draft Bill.

The guidelines are implied in mandatory terms to ensure that the process is not ambiguous to avoid inconsistencies and discretion in the manner in which counties assemblies not only consider the draft Bill but also subsequently submit returns to Parliament.

The guidelines are, therefore, essential in assisting the Speakers of Parliament to ascertain the exact decisions the counties have made and to confirm whether the draft Bill considered by each county assembly was the exact version forwarded to the respective county assembly by the IEBC.

The guidelines provided that while filing returns of their decisions, the Speakers of the county assemblies submit a certificate of approval and a copy of the draft Bill that was considered.

Kwale County Assembly submitted a certificate of approval but failed to submit a copy of the draft Bill that was considered by the Assembly.

Nyamira County Assembly submitted a certificate of approval but the draft Bill it submitted had "fundamental variances in many clauses" compared to the draft Bill submitted to the County Assembly by the IEBC.

Details from the IEBC show that the delivery of the Draft Bill to the county assemblies was done on varying dates.

The first set of county assemblies received the Draft Bill on January 27, 2021, while Elgeyo Marakwet County Assembly received the Draft Bill last -- on February 2, 2021.

Consequently, the last date by which Elgeyo Marakwet County Assembly ought to have made a resolution after its consideration of the Draft Bill is May 3, 2021, which is three months from the date of receipt.

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